a blog about sexuality, gender, law and culture

October 14, 2009

Breaking: Judge Walker denies summary judgment motion

In an oral order from the bench that followed two hours of argument and a recess, Judge Walker denied the summary judgment motion filed by defenders of Prop 8 in Perry v. Schwarzenegger. In his comments, Judge Walker rejected Baker v. Nelson as precedent, saying that the Perry case was more like Romer. [Thanks to Shannon Minter for the description]

A federal judge refused today to dismiss a
lawsuit challenging California's ban on same-sex marriage, setting the
stage for the nation's first trial on the constitutionality of a law
allowing only opposite-sex couples to wed. Chief U.S. District Judge Vaughn Walker, in a ruling from the bench
in San Francisco, said a trial was needed to resolve crucial issues,
including whether gays and lesbians are persecuted minorities entitled
to judicial protection from discriminatory laws. He has scheduled the
trial for January.

Sponsors of Proposition 8, approved by 52 percent of the voters in
November, argued that the initiative was clearly constitutional under
U.S. Supreme Court precedents, which have never recognized a right to
marry a person of the same gender. Plaintiffs in the suit seeking to overturn Prop. 8 - two same-sex
couples, a gay-rights organization and the city of San Francisco -
contend that the measure's real purpose was to strip a historically
persecuted minority group of rights held by the majority. The sponsors contended that Prop. 8 was based on an ages-old
tradition of male-female marriage and the ability of opposite-sex
couples to conceive children.

But Walker said the Supreme Court, in striking down laws against
interracial marriage and by allowing prisoners to marry, had defined
the right to wed as fundamental without limiting it to certain groups. Disputes over the state's authority to enshrine traditional marriage
in its Constitution, and exclude same-sex couples because of their
inability to conceive children, raise factual questions that require a
trial, the judge said.